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Thursday, Nov 9, 2017, 3:30 pm

How Business Unionism Got Us to Janus

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Photo of a union meeting by Matej Kastelic/Shutterstock

In September, the Supreme Court agreed to hear Janus vs. AFSCME, a case that has the potential to undermine public sector unions by curtailing unions’ right to charge non-members an “agency fee.” This fee covers the protection and services the union is obligated to provide all employees in the bargaining unit.

Many labor leaders and pundits have identified unions’ loss of revenue as the most dire consequence of an unfavorable ruling in the Janus case. Others have pointed out that the forces behind Janus don’t only aim to weaken public employee unions: they are seeking to destroy the public sector and public ownership of resources across the board.

However, the Right’s deeper, darker strategic purpose has been mostly ignored, even by unions: Janus fits in with a larger project, led by the State Policy Network—a network of right-wing think tanks—that aims not only to “defund and defang” unions but to “deliver the mortal blow to permanently break” the Left’s “stranglehold on our society.”

Anyone who cares about democracy and the social and economic well-being of workers has a stake in how unions will respond to the Court’s decision. And with Trump-appointee Neil Gorsuch now sitting on the bench, it appears likely that the ruling will not go in labor’s favor.

The real crisis at hand

The tacit assumption of Janus supporters and foes alike is that, when faced with a choice between being a union member and paying dues or not, significant numbers of members will bolt, and non-members who have been paying “agency fees” will not join. Because unions understand the danger posed by Janus as largely financial, they have focused on saving money, cutting staff and pursuing mergers. Some have also determined that they must be proactive to stave off mass desertions and are reaching out to members to solidify their support as dues payers.

Belt-tightening and talking to members may temporarily fortify union apparatus, but this approach ignores the question Janus demands we ask: Why is labor predicting members will desert their unions and that agency-fee payers will refuse to join?

These assumptions labor holds around Janus exemplify the real crisis unions confront—one not often discussed, even behind closed doors. In defining their purpose primarily as protecting members’ narrowly conceived economic interests and shaping the organization to function like a business, unions construct a very limited role for the workers they represent. Under this status quo, members are generally considered passive, with limited authority and voice. Their sole “power” is to pay dues and cast votes in what are generally uncontested elections for officers.

The right-wing forces behind Janus have used their frighteningly vast financial resources to exploit this weakness. The Janus brief, filed by the National Right to Work Foundation on behalf of Illinois public employee Mark Janus, articulates anti-union arguments familiar to any union activist who has tried to recruit skeptical co-workers. The plaintiff’s claims interrogate AFSCME’s purposes, its presence as a political force and whether it serves as a collective voice for working people on the job and in the larger society.

The brief reads:

Janus objects to many of the public-policy positions that AFSCME advocates, including the positions that AFSCME advocates for in collective bargaining. For example, he does not agree with what he views as the union’s one-sided politicking for only its point of view. Janus also believes that AFSCME’s behavior in bargaining does not appreciate the current fiscal crises in Illinois and does not reflect his best interests or the interests of Illinois citizens.

In building support for Janus, the Right has questioned the meaning of union membership while also criticizing public employee unions’ engagement in politics. Unions have frequently been ineffective in responding to the charge that they are just another special interest group, buying politicians for their members’ benefit. Unions have disarmed themselves in this assault by adopting the mentality and tactics of special interests. Labor has by and large accepted the Right’s definition of the contest (winning over “friendly” politicians in either party), the weapons (campaign donations), and the opponents (workers in other countries as our competitors). In doing so, labor has turned its back on its unique and most powerful resource—an informed, empowered and mobilized membership.

Instead, labor has countered the Right’s arguments on narrow grounds, railing against “free riders,” who they say will require unions “to represent non-members, who would be paying nothing at all, passing that burden off to dues-paying members.”

But this argument has little resonance to workers who already feel they are not well-represented. Like Mark Janus, they don’t feel their voices count. The “union” exists apart from them, with staff and officials insulated from even hearing, let alone responding to, members’ opinions and needs. The economic payoff from union dues can be hard to see when your paycheck hasn’t increased or in some cases, has decreased, despite your union having bargained in your name.

And this argument also avoids addressing the larger case made by the Right: that joining a union is not in workers’ best interest. The Right has confused workers by selling an individualistic, competitive ideology. And unions have been too slow to address why this ideology is harmful and antithetical to principles of collective action and solidarity. As others have observed, organized labor has by and large forgotten the grammar and vocabulary of class struggle.

From “it” to “we”

Though we shouldn’t adopt their methods or mentality, labor can learn a great deal from the Right’s victories. To move from defense to offense, labor needs to develop a new mindset. The strategies being discussed to avoid disaster post-Janus reflect many unions’ unwillingness to reimagine themselves.

One of these strategies is to eschew the legal responsibility to be “exclusive representative” of the bargaining unit, thereby creating competition between unions. Multiple unions representing workers for a single employer is the norm in other countries, where unions are allied with political parties. And some might consider it an idea worth pursuing. But encouraging competition among unions is a disaster, as Chris Brooks demonstrates in a close study of what occurred in Tennessee when an NEA affiliate lost exclusive representation. Workers turn against one another, viewing one another as rivals. Company unions, masquerading as professional groups that offer low insurance rates, compete, successfully, against traditional unions.

Is a “Workers’ Bill of Rights” an answer to Janus and the anticipated loss of collective bargaining in more states, as has been proposed in this publication? This is an interesting strategy but its limitation is that it’s a legalistic solution, not a political one. It doesn’t speak to the reasons workers choose not to join unions when they have that right, or to why they vote them down in elections.

Further, as Nelson Lichtenstein points out, the “rights discourse” is limited by being individual. What makes unions unique is that they represent members’ individual interests through struggle for their collective interests. Moreover, such a bill of rights ignores social oppression that workers experience on the job and separates their lives and rights outside the workplace from those they have inside. This strategy’s major flaw is not in what it tries to do but that it substitute for labor’s ability to critically analyze its losses.

One way to understand what adopting a new mindset would mean is looking to what occurred when the Caucus of Rank and File Educators (CORE), the reform caucus of the Chicago Teachers Union (CTU), won the union’s leadership. This caucus conceived of the CTU as a member-driven union that served members’ economic interests best when it supported social justice issues across the board. The newly elected leadership altered the way the union made its purpose evident and worked to make all the union’s operations support this new mindset.

CORE put the people it represented, employees of the Chicago Public Schools, at the center of its organizing, as Jane McAlevey puts it. A member-driven union gives people a reason to be union members and not agency fee payers. The goal? Shift the union from being an “it” to being “we.”

Democracy or bust

Putting workers at the center of organizing requires union democracy. It also demands moving towards international solidarity. What Kim Moody calls “labor nationalism” has weakened the unions by allowing workers to fall prey to Trump’s xenophobia. “’Buy American” is very close to “Make America Great Again.” Such slogans lead workers to become hostile to their counterparts in other countries rather than to the transnational corporations and elites that set economic policy.

Overcoming the fallout from Janus will require reimagining union membership by inverting hierarchical relations that replicate disempowerment on the job. To do this, unions need to grapple with a number of pressing questions:

Why have professional negotiators or paid staff sent to the bargaining table by national- or state-level unions rather than members who have been elected based on their leadership and ideas? Should union organizers be elected rather than being hired and appointed? Why aren’t members allowed to know how their representatives vote in the unions’ executive council meetings? Should endorsements for political office be made by the membership in a referendum? Should unions use “participatory budgeting” to have members decide priorities for where their dues are allocated? What is a member’s responsibility for recruiting and educating co-workers about the union?

Activists who have tried to recruit co-workers to their union know that changing people’s minds about joining can be slow and hard work. It requires listening and a deep commitment to union ideals because people often hold beliefs that are inimical to collective action. This work also requires having a union you trust will make a difference in the lives of its members. Like democracy anywhere, union democracy is difficult to obtain and fragile. It can be inefficient and it creates tensions. But it’s also the key to union power. Vibrant democracy and a mobilized membership are crucial to winning at the bargaining table and to enforcing any agreement in the workplace. Like all legal rights, the contract is only as strong as members’ knowledge of its provisions and willingness to protect it.

This is a moment of truth for unions and their supporters. We need to look in the mirror and see that Janus has two faces. The case could reduce organized labor to a shell, or it could be the start of a remarkable revitalization that draws strength from the widespread social movements that have emerged from both the Bernie Sanders campaign and Trump’s election. The latter is possible, but it will be up to all of us to make it a reality.

Instead of me identifying "one NEA local that uses 'participatory budgeting,'" let me respond by asking on what grounds you base your generalizations. NEA has thousands of locals. The organization schedules (or at least used to schedule, in my experience) meetings throughout the year for members to participate in the budget prioritizing process. If the meetings are sparsely attended, it could be due to a number of reasons, such as unfamiliarity with the process, members' lack of time due to the demands of their jobs, or lack of interest.As for the impact of professional staff, there probably are some staff who exert more influence over the locals they service than do others. However, many locals have strong leadership. Strong local leaders use the services of the professional staff in support of the goals they've developed.In theory, the points you make are good ones. However, theory is often not supported by real-life experience. I've talked with many NEA members who have said they simply don't have the time -- or don't want to spend the time -- to engage in union activities. They cite jobs that are too demanding, or they'd rather spend the time with their families. I imagine that when public education unions were getting organized and beginning to assert real influence on behalf of their members -- in the 1960s and 1970s -- efforts to organize the folks they represented were more effective and participation in union activities was broader among the membership. I don't know that for a fact, but it's my impression from my experience. Somehow the unions have to rediscover how to organize their memberships, but it's easier said than done, especially since the privatization movement is so well financed (and in one form or another buying off politicians) and has made so many inroads in weakening public sector employment.

Posted by Ghost of Chico Salmon on 2017-11-19 11:38:31

I think this response is indicative of the problem I raise in the article. Please tell me one NEA local that uses "participatory budgeting." At best what occurs is that at a sparsely-attended meeting, those present vote a budget (prepared by staff or the officers) up or down. As in other unions, NEA members expect the staff to run the union, when in fact, it should be members and their elected leaders who tell staff what to do. Yes, we face budget cuts that harm our ability to protect members' economic interests. The question is what the unions do about this - besides lobbying.

Posted by Lois Weiner on 2017-11-18 20:14:38

Whats more likely that the US population continues to let Republicans actively destroy the working class with Democrat acquiescenece or we finally get tired of being impoverished and letting the few live well while we toil for their profits? You moronic Fukuyamists take the populace for total idiots.

There is a breaking point and we are there right now. After the Republicans have no one else to blame the Democrats will come along and do next to nothing, the jig is up for a lot of reasons, wage gap, increasing poverty gap between top and bottom, massive wealth accumlation at top, environmental destruction, automation You live in a propaganda land, but that is all you are here for anyways. What is more likely? You fool.

Posted by don on 2017-11-16 05:37:58

Hey don, that's a great concept and it's even called a members-only contract... but the greedy union bosses seem to prefer the monopoly style contracts. Do you happen to know why?

Posted by Richard Graham on 2017-11-15 03:52:04

Forced Unionism is real and it's still legal in several states all across our USA. Although you're right that people are not forced "to join" a labor union/PAC, we are being forced to financially support organizations against our will as a condition of employment... and those monies are indeed being used for strictly political activities that have nothing to do with representing us. The massive accounting games, especially by public sector unions, must be stopped and the Janus vs. AFSCME Case will be a great opportunity to do that.

Voluntary union membership is great for our country, but Forced Unionism needs to be outlawed on the national level IMO.

Posted by Richard Graham on 2017-11-15 03:49:54

don, do you actually believe Forced Unionism is a good thing for workers in our USA? If so, can you please explain why you believe that?

Posted by Richard Graham on 2017-11-15 03:44:30

There is no such thing as "Forced Unionism." No one is required to join a labor union; membership is voluntary. Many employees who are not members of the union that represents them and their colleagues in the workplace are required to pay an agency, or representation, fee to the union. But those nonmembers do not have to pay for activities or communications that are unrelated to collective bargaining and contract administration/enforcement, including political communications and activities. Unions have had procedures in place for decades to calculate the pro rata costs of those activities and communications that are not chargeable to the nonmember agency fee payers who object to paying those costs. We need to put aside the anti-union rhetoric that includes such terms as "forced dues" and "union bosses." By their very nature, they inflame readers and listeners and make discussion of real workplace issues much more difficult.

Posted by Ghost of Chico Salmon on 2017-11-14 12:09:58

Bottom line Don. What's more likely; a return to 1950 where everybody is in a union, or a national right to work? You'd best prepare yourself for the most likely future.

Posted by esoxlucius on 2017-11-14 09:12:53

I would not say very, more like problematic nationalist. Which creates national tension.

Posted by don on 2017-11-14 09:10:01

Richard Graham, ok lets go with that, If you pay no dues, you get no benefits. Of course then your paymasters hope they can find enough people dumb enough to further destroy the present dwindling power of the working class. Stop pretending you are anything but a self interested moron who probably has some government pension, is a paid propagandist, or even worse is someone working a terrible job that you wish to see all everyone else joining you in.

Posted by don on 2017-11-14 09:08:06

You are the one who went to extremes of painting all unions as structurally not caring about anyone, right after you pointed the finger complaining how "entrepreneurs" pretend to give a shit about the working class. Of course you dont even have a workforce do you, but you pretend you are some owner. Get the fuck outta here with your lies.

Posted by don on 2017-11-14 09:04:22

Does the CEO and board get paid no matter what? Try digging a little deeper there. Tell me genius, how does an employer earn the trust of the workers?

Posted by don on 2017-11-14 08:58:31

delete, delte, delte, delete this.

Posted by don on 2017-11-14 08:55:19

Richard Graham, you are a voice of the billionaire owners and corporate boards, be gone with you , you paid hack trash.

Posted by don on 2017-11-14 08:45:19

You're right and I sincerely hope it does happen. As you've mentioned, I truly believe organized labor does still have a place in today's workplace BUT it will need to step back to how it functioned in the good old days as true labor unions for-the-workers versus mostly political action committees for their corrupt politician buddies IMO. The Janus decision will certainly play a critical role in how the future of labor unions will be shaped.

Posted by Richard Graham on 2017-11-13 03:22:15

I agree with the underlying premise of this article -- that unions need to do a better job of organizing members. But the author makes so many unfounded generalizations that the article loses whatever force it otherwise could have. She treats unions as a monolithic entity, assuming that what may be an accurate description of one union is true for all of them. My experience with the National Education Association demonstrates the fallacy of that presumption. For example, for many years, the NEA has utilized the "participatory budgeting" that the author seems to support. As for the use of professional negotiators and paid staff at the bargaining table, in my experience NEA locals wanted more assistance from such individuals, not less or none at all. I won't dispute that some members may oppose their union's participation in the political process. But rather than simply dismissing such participation as outside the scope of a good union's mission, the author's statement, "The economic payoff from union dues can be hard to see when your paycheck hasn’t increased or in some cases, has decreased, despite your union having bargained in your name," demonstrates the need to have people in public office who are sensitive to the financial needs and working conditions of effective employees -- especially public sector employees but also those in the private sector. Regarding public sector employees, the people who control the pot of money available to pay them are elected leaders. Collective bargaining for better wages becomes a hollow exercise when there's insufficient money allocated to pay the employees.A Supreme Court decision in favor of Janus may hold a silver lining for unions if it prompts them to pay more attention to organize their members and the non-member employees whom they'd like to recruit. But make no mistake, such a decision will impart immediate financial harm on unions. If they ultimately emerge stronger, it will probably come after a lengthy period of retrenchment.

Posted by Ghost of Chico Salmon on 2017-11-12 12:32:52

I actually agree that Janus *could* make unions stronger. They won't be politically stronger but they have the opportunity to focus on their craft, to raise the level of professionalism and pride in their work. Far too many unions are about protecting the worst of their group instead of reinforcing and promoting the best.

If Janus wins at the supreme court, I expect a national right to work won't be too far behind. The whiners and protectors of bad employees will leave and what's left could be the craftsmen and artists of the trade. It's a big maybe, but it would be transformative.

Posted by esoxlucius on 2017-11-12 09:57:51

Anywhere? Anywhere... You went from reasonable to absolute. I'm an employer and I believe I care about my employees. But let's keep it in context. I care about all the tools I need for my business. I don't abuse my computers, I don't neglect my machinery and don't harm my employees well being, either financially or physically. I need them, all, to deliver quality services to my clients.

Employees made an affirmative decision, whether they think about it or not, to trade the full value of their skills for the security of a regular paycheck every two weeks. Entrepreneurs like me make the opposite bargain. I also risk complete financial ruin if things go badly, which employees do not.

To say that I "don't care" about employees is silly. I'll pay whatever I have to to find the next willing and highest skilled employee to continue my operation. What unions represent is not a "fair wage" but a cartel of local labor, much the same way that OPEC is a cartel of oil. The cartel makes me look to less expensive labor in other states, or other countries, or to buy machines and robots to obsolete the employee. It's an arms race that the union can only win in the short term, so why play the game?

I appreciate your article and I mean it when I said it was well written. The time is right for innovation in unions. I do believe you can leverage your ideas above to make stronger, more focused unions that entrepreneurs see as assets not adversaries. But the current attitude of unions is to get paid more, not to deliver value to the client(s) which are (1) the business they work for, and (2) the client that buys their companies products or services.

Focus on making more money for your company and you will make more money for yourselves. But alas, most union members are more inclined to whine...

Posted by esoxlucius on 2017-11-12 09:50:31

Was that SEIU by chance?

Posted by Richard Graham on 2017-11-12 08:45:58

Since lots of union bosses seem to believe Forced Unionism is OK here in America, do you really think they care about us workers? It seems like all they really care about is lining their own pockets at any expense.

Posted by Richard Graham on 2017-11-12 08:45:16

The only thing that might push organized labor into extinction are greedy union/PAC officials who seem to have forgotten about the members and fee payers they are supposed to represent. Sadly, too many of today's so-called labor unions mostly act and serve as Far-Left political action committees... this is especially true in the public-sector.

In reality, if our SCOTUS rules in favor of Mark Janus and us workers, this case could make the true labor unions even stronger than they already are. The only ones that might suffer are the unions/PACs which are taking advantage of their members and fee payers. It's time to outlaw Forced Unionism to protect us workers and our families, and the Janus Case could do just that for countless public-sector workers.

Posted by Richard Graham on 2017-11-12 08:43:19

I worked for the government for 26 years and our union was a phony. They gave money to every possible candidate in order to gain influence. They were a business. So when the rule came down that we didn't have to pay dues, most workers said enough, we don't need these leeches skimming off our wages. The lesson here is that unions need to earn the trust and support of their members because if they get paid no matter what, they become corrupt and unresponsive to the membership.

Posted by abe1000 on 2017-11-11 12:41:16

Why "stupid"? Labor used to say "Buy union." That sent the message that we wanted union jobs everywhere and not have workers compete against one another and let the bosses watch us fighting among ourselves. Should we compete against other workers or the bosses? I think what's foolish is to think the bosses care about workers anywhere.

Posted by Lois Weiner on 2017-11-10 22:58:11

"“’Buy American” is very close to “Make America Great Again.” "

That's just stupid.

Posted by RyanGrant on 2017-11-10 22:51:07

This was a very well written article. It's the best I've read on Janus and I read almost every day about it. It's the first fresh ideas anyone has ever posited for making unions relevant again. All this praise from a guy who hopes Mr Janus wins his case... But I also think that organized labor has its place and should not be pushed to extinction.

Posted by esoxlucius on 2017-11-10 21:50:55

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